Unlawful Presence: Three-Year, Ten-Year, and Permanent Bars

The unlawful presence bars were created by the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). A foreign national is unlawfully present in the United States if he or she: (1) remains in the United States after the expiration of an approved period of stay; (2) or is present in the United States without having been admitted or paroled.

Three-Year Bar, Ten-Year Bar, Permanent Bar

The grounds of inadmissibility for unlawful presence can be found under sections 212(a)(9)(B) and (C) of the Immigration and Nationality Act (“INA”). Pursuant to INA § 212(a)(B)(i)(I):

Any alien (other than an alien lawfully admitted for permanent residence) who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States…, and again seeks admission within 3 years of the date of such alien's departure or removal…is inadmissible.

Furthermore, pursuant to INA § 212(a)(B)(i)(II), any foreign national who:

Has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States is inadmissible.

Finally, pursuant to INA § 212(a)(9)(C)(i), any alien who:

has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

Canadian Citizens and Duration of Status (D/S)

Canadians admitted into the United States without an I-94 are regarded as the same as foreign nationals whose I-94, Arrival/Departure record, is stamped D/S (Duration of Status). Canadian citizens are generally visa exempt and are not issued an I-94. Thus, when a Canadian citizen enters the United States in D/S, he or she does not begin to accumulate unlawful presence until there has been violation of status determination by either United States Immigration and Customs Service (USCIS) or an Immigration Judge. Unlawful presence will commence on the date of the finding.

If you have a potential immigration issue due to an accumulation of unlawful presence, please contact the office to discuss your immigration situation.